04/14/2015

ShortTake: “Unavoidable” Export Violations

The export and temporary import of defense articles and services is governed by the Arms Export Control Act (AECA). The International Traffic in Arms Regulations (ITAR) implements the AECA.

The typical AECA/ITAR violation involves export or re-export of a defense article without a license or other authorization. But a recent report regarding the U.S. Marine Corps’ evacuation of the U.S. Embassy in Yemen provides an interesting challenge under AECA/ITAR.

Apparently the Marines, in their rush to depart Yemen a while back, left some weapons behind. They claimed the weapons “were rendered inoperable”, primarily by “smashing with sledgehammers”. But does that solve the export problem? Is there a smashed-to-smithereens exception which authorizes a U.S. person to retransfer a defense article to a foreign end user?

We know the AECA applies to military troops and that ITAR prohibits the unlicensed transfer of defense articles – like the Marines’ weapons – from one foreign end use to another foreign end use without a license. We also know that Section 126.4 of the ITAR provides that –

The approval of the Directorate of Defense Trade Controls must be obtained before defense articles previously exported pursuant to this exemption are permanently transferred (e.g., property disposal of surplus defense articles overseas) unless the transfer is pursuant to a grant, sale, lease, loan or cooperative project under the Arms Export Control Act or a sale, lease or loan under the Foreign Assistance Act of 1961, as amended, or the defense articles have been rendered useless for military purposes beyond the possibility of restoration. (Emphasis added).

Did smashing the weapons with a sledgehammer render every part of those weapons “useless for military purposes beyond the possibility of restoration”? Did the Marine sledgehammering activities render the weapons “useless” and “beyond the possibility of restoration”?

Bloggers on this event have their own views. For example, “If you take a sledgehammer to for example the barrel and receiver of most firearms (certainly an M4), they will be inoperable and nonrepairable. The pistols even more so.”

And how would this play out with civilian contractors? As one blogger commented: “When your unarmed civilian contractor employees are stopped at gun point by the Iraqi Army and your employees’ ITAR-controlled ballistic vests and helmets are confiscated, your company has violated the ITAR by making an unauthorized transfer.”